PETITIONER:
KARPAGATHACHI AND ORS.
Vs.
RESPONDENT:
NAGARATHINATHACHI
DATE OF JUDGMENT:
10/03/1965
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SUBBARAO, K.
SHAH, J.C.
CITATION:
1965 AIR 1752 1965 SCR (3) 335
CITATOR INFO :
D 1974 SC 175 (11)
R 1977 SC 394 (5,6)
ACT:
Hindu Law--Partition between co-widows--Whether right
of survivorship can be relinquished--If repugnant to
Transfer of Property Act, 1882 (4 of 1882) s. 6(a)--Onus.
HEADNOTE:
Two co-widows divided their husband's property and each
entered into separate possession of her share. on the death
of one of the widows her daughter the respondent took
possession of her mother's share. The appellant the
surviving widow filed a suit against the respondent
claiming possession of that share. The Trial Court decreed
the suit, which on appeal was set aside by the High Court.
In appeal by certificate:
HELD: (i) Under the Hindu Law the widows were competent
to partition the properties and allot separate portions
each, and incidental to such allotment each could agree to
relinquish her right of survivorship in the portion allotted
to the other. Such an arrangement was not repugnant to s.
6(a) of the Transfer of Property Act, 1882. [337 C-D].
Case law referred to.
(ii) Mere partition of the estate between the two widows
does not destroy the right of survivorship of each to the
properties allotted to the other. The party who asserts that
there was an arrangement by which the widows agreed to
relinquish the right of survivorship must establish this
arrangement b.v clear and cogent evidence. [338 B].
The respondent, in the instant case, had failed to
discharge this onus. [338 B-C].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 998 of
1963.
Appeal from the judgment and decree dated January 12,
1962 of the Madras High Court in Appeal Suit No. 292 of
1958.
A.V. Viswanatha Sastri, V.S. Ramaswami lyengar and R.
Thiagarajan, for the appellants.
S.V. Gupte, Solicitor General, and R. Ganapathy lyer,
for the respondent.
The Judgment of the Court was delivered by
Bachawat J. One Sivasubramania Pillai died in the year
1924 leaving him surviving his mother. two widows,
Thialaiachi and Karpagathachi, and a daughter,
Nagarathinathachi (respondent herein) born of Thialaiachi.
The two widows inherited the properties left by
Sivasubramania. in July 1927, they divided the bulk of the
properties and each entered into separate possession and
enjoyment of the properties allotted to her. The partition
is evidenced by two partition lists called partition deeds,
Exs A–I and B–45 dated July 14. 1927 and signed by both of
them. Under this partition, two veils of land were set apart
for the maintenance
336
of Sivasubramania’s mother, to be enjoyed’ by her during her
lifetime, and on her death, to be taken and enjoyed by the
two widows in separate portions as mentioned in the
partition lists. On August 26. 1954, Thialaiachi died, and
upon her death, the respondent took possession of the
properties allotted to Thialaiachi under the partition of
July, 1927. On December 8, 1954, Karpagathachi instituted
against the respondent the suit, out of which this appeal
arises, claiming possession of the suit properties. The
respondent resisted the suit claiming that under the
partition each widow gave up her right of survivorship in
respect of the properties allotted to the other, and
consequently on the death of Thialaiachi, the respondent as
her daughter was entitled to take her share as her heir and
to enjoy the same during the life of Karpagathachi. By his
judgment dated August 18, 1958, the District Judge, East
Thanjavur, rejected’ the defendant’s contention, and held
that the division between the two widows was for convenience
of enjoyment only, and decreed the suit in respect of the
properties held by Thialaiachi under the partition of July,
1927. On appeal, the Madras High Court by its judgment
dated January, 12, 1962 held that under the partition each
widow gave up her life interest in the properties allotted
to the other and consequently Karpagathachi was not
entitled to recover possession of the properties allotted to
Thialaiachi, set aside the decree of the District Judge, and
dismissed the suit. Karpagathachi and several other persons
impleaded as party respondents in the appeal before the High
Court now appeal under a certificate granted by the High
Court to this court under Art. 133 of the Constitution.
Mr. Viswanatha Sastry appearing on behalf of the
appellants contends that: (1) the right of survivorship of
each widow in respect of her husband’s estate is the chance
of the surviving widow to take the entire estate of her
husband on the death of the cowidow, and in view of s.6(a)
of the Transfer of Property Act, 1882, the widows were not
competent to enter into an arrangement transferring or
relinquishing their right of survivorship; (2) the partition
lists, Exs. A–I and B—45 not being registered, are not
admissible in evidence; (3) the partition between the widows
was for convenience of enjoyment only, and the respondent
has failed to establish that each co-widow gave up her right
of survivorship in respect of the properties allotted to the
other. The learned’ Solicitor-General appearing on behalf of
the respondent disputed these contention.
We are of opinion that the first contention of Mr.
Viswanatha Sastry should be rejected. Under the Hindu law as
it stood in 1924. two widows inheriting their husband’s
properties took together one estate as joint tenants with
rights of survivorship and equal beneficial enjoyment. They
were entitled to enforce a partition of those properties so
that each could separately possess and enjoy the portion
allotted to her, see Bhugwan Deen Doobey v. Myna Baee (1)
[1867] 11 M .I. A. 487
337
Gauri Nath Kakaji v. Gaya Kuar(1). Neither of them could
without the consent of the other enforce an absolute
partition of the estate so as to destroy the right of
survivorship, see Commissioner of Income-tax v. Smt. Indira
Balakrishna(2) But by mutual consent they could enter into
any arrangement regarding their respective rights in the
properties during the continuance of the widow’s estate, and
could absolutely divide the properties, so as to preclude
the right of survivorship of each to the portion allotted
to the other. See Ramakkal v. Ramasami Naickan(3), Sudalai
Ammal v. Gomathi Ammal(4). Likewise, two daughters
succeeding ,to their father’s estate as joint tenants with
rights of survivorship could enter into a similar
arrangement. See Kailash Chandra Chuckerbutty v. Kashi
Chandra Chuckerbutty(5) Subbammal v. Lakshmana lyer (6),
Ammani Ammal v. Periasami Udayan(7). Such an arrangement was
not repugnant to s.6(a) of the Transfer of Property Act,
1882. The interest of each widow in the properties inherited
by her was property, and this property together with the
incidental right of survivorship could be lawfully
transferred. Section 6(a) of the Transfer of Property Act
prohibits the transfer of the bare chance of the surviving
widow taking the entire estate as the next heir of her
husband on the death of the co-widow, but it does not
prohibit the transfer by the widow of her present interest
in the properties inherited by her together with the
incidental right of survivorship. The widows were competent
to partition the properties and allot separate portions to
each, and incidental to such an allotment, each could agree
to relinquish her right of survivorship in the portion
allotted to the other. The first contention of Mr.
Viswanatha Sastry must be rejected.
The second contention of Mr. Viswanatha Sastry must also
be rejected. A partition may be effected orally. By an oral
partition, the two widows could adjust their diverse rights
in the entire estate, and as part of this arrangement, each
could orally agree to relinquish her right of survivorship
to the portion allotted to the other. In the trial Court,
the suit was tried on the footing that the partition was
oral, and that the two partition lists were merely pieces of
evidence of the oral partition, and no objection was raised
with regard to their admissibility in evidence. In the High
Court, the appellants raised the contention for the first
time that the two partition lists were required to be
registered. The point could not be decided without further
investigation into questions of fact, and in the
circumstances, the High Court rightly ruled that this new
contention could not be raised for the first time in
appeal. We
(1) [1928] L.R. 55 I.A. 299. [1960] 3 S. C.R. 513, 517.
(2) [1899] I.L.R. 22 Mad. 522.
(3) [1912] 23 M.L.J. 355.
(4) [1897] I.L.R. 24 Cal. 339.
(5) [1914] 26 M.L,J. 479. [1923] 45 M.L.J. 1.
338
think that the appellants ought not to be allowed to raise
this new contention.
We think that the third contention of Mr. Viswanatha
Sastry is sound’ and should be accepted. Mere partition of
the estate between the two widows does not destroy the right
of survivorship of each to the properties allotted to the
other. The party who asserts that there was an arrangement
by which the widows agreed to relinquish the right of
survivorship must establish this arrangement by clear and
cogent evidence. The respondent has failed to discharge this
onus. It is common case that the partition is evidenced by
Exs. A–1 and B…45. Exhibit B–45 is the list showing the
properties allotted to Thialaiachi. The relevant portion of
Ex. B….45 reads:–
“In accordance with the chit cast,
Theiyalai Achi. wife of Sivasubramania Pillai,
residing at Karuppur, shall take the nanja,
punja, house and ground, cattle-shed,
cattle, pathway for men, cattle and cart and
shed where dried dung cakes are stored
mentioned in the list and shall pay the
Government kist for the aforesaid properties
from the current fasli 1337 and enjoy them.”
Exhibit A–1 showing the properties allotted to
Karpagathachi contains similar words. Now the two lists show
that each widow is to “take and enjoy” the properties
allotted to her. The corresponding Tamil words are “adainthu
anuhavithu.” These words do not either expressly or by
necessary intendment exclude the right of survivorship of
the other widow. The Tamil words “Sarva Swantantra
Badyamayum” and “Santhathi pravesamayum” and other words
indicating relinquishment of the right of survivorship are
conspicuous by their absence. The words used in the two
partition lists are wholly insufficient to show that the two
widows relinquished their right of survivorship inter se.
The fact that two separate partition lists were drawn up and
each was signed by the two widows does not carry the matter
any further. The two partition lists show that the two velis
of land kept separately for the maintenance of the
mother-in-taw were to be divided by metes and bounds on her
death between the two widows. The division of the two velis
on the death of the mother-in-law was agreed upon to avoid
future disputes. The fact that Thialaiachi had a daughter
and was older than Karpagathachi by 20 years does not show
that Karpagathachi mush have agreed that Thialaiachi’s
daughter should enjoy the properties allotted to Thialaiachi
after her death. After the partition, the pattas in respect
of all the lands continued to be in the joint names of both
the widows. If there was an absolute partition between the
two widows. it is not explained why there was no separate
mutation in the name of each widow in respect of the lands
allotted to her.
The deeds executed by Thialaiachi. Exs. B–3, B-4. B- 6.
B—7 and B–8 to B—43 recite the partition, but they do
not use words indicating that there was an absolute
partition. The sale
339
deeds, Exs. A–3, A–4, and A–6 executed by both the widows
are in respect of undivided properties and throw no light on
the question at issue. The evidence on the record does not
show clearly whether the sale deed’, Ex. B–44, executed by
both the widows relates to undivided properties, or whether
it relates to properties as separately allotted to
Thialaiachi. From time to time, Thialaiachi executed three
wills, Exs. B–I, B–2 and A–5 giving to the legatees and
particularly the respondent certain properties absolutely
with full powers of alienation. The first two wills, Exs.
B–I and B–2, refer separately to Thialaiachi’s separate
properties and to the properties obtained by her on
partition. The recitals in the two wills do not indicate
that Thialaiachi obtained her husband’s properties on
partition with absolute rights. The third will, Ex. A–5,
does not purport to dispose of specifically the properties
obtained by her on partition. Karpagathachi knew that
Thialaiachi had executed the wills, but it is not shown
that she knew of the contents of the wills. By Ex. A–2,
both Thialaiachi and Karpagathachi made a free gift of some
of the properties allotted to Thialaiachi. D.W. 1 is unable
to explain why Thialaiachi joined in this deed. By sale
deed, Ex. B–5, Thialaiachi sold absolutely some of the
properties allotted to her and a notice, Ex. A–22,
regarding the proposed transfer of the patta in the name of
the vendee was served upon Karpagathachi. It is not clear if
the patta was actualy transferred in the name of the vendee.
The explanation of Karpagathachi that she protested against
the transfer and ultimately received’ one half of the sale
price has not been believed. But assuming that Karpagathachi
did not object to the transfer, this single circumstance
does not establish that at the time of the partition, he had
agreed to give up her right of survivorship in respect of he
properties allotted to Thialaiachi.
Karpagathachi (P.W. 1) denied that there was an absolute
partition. She was not shaken in cross-examination.
Nataraja Pillai P.W. 2) said that there was no talk that
each should take the properties absolutely and it was agreed
that each would enjoy separately. We find nothing in the
evidence of P.W. 2 to show that the widows agreed to
partition the properties absolutely so as to destroy the
right of survivorship.Manickam Pillai (D.W. 1) said that at
the time of the partition, Thialaiachi said that she had a
daughter and if what was allotted for her share was given to
her absolutely she would agree to the partition and
Karpagathachi also wanted to have absolute rights. The
District Judge rightly rejected evidence of D.W. 1. The
partition lists were drawn up after consulting lawyers. D.W.
1 is unable to explain why words indicating absolute
partition were not used in the partition lists. D.W. 1 had
been in management of the properties of the respondent,
yet he falsely denied this fact. He had intimate dealings
with Thialaiachi and the respondent. On a meticulous
examination of the oral and documentary evidence, the
learned District Judge rejected the respondent’s case that
the widows had orally agreed to relinquish their 3 SCI—9
340
right of survivorship. We think that this finding is
correct, and the High Court was in error in reversing this
finding.
In the result, the appeal is allowed, the decree and
judgment passed by the High Court are set aside and those of
the trial Judge restored’. In all the circumstances, we
direct that the parties will pay and bear their own costs
throughout, in this Court and also in the Courts below.
Appeal allowed
341